AXA Sunlife Services Plc v Campbell Martin Ltd & Ors

Lord Justice Stanley Burnton: 1. This is the judgment of the Court on the costs issues that were left over after the judgment handed down on 18 February 2011. 2. Both the Appellant and the Respondents succeeded on some issues before us. More of the argument was spent on the question whether the entire agreement clause excluded misrepresentations, but for reasons given in paragraph 38 of my judgment the practical effect of the Respondents’ success may be limited. The claims between the parties arise out of their commercial relations. This context is very different from the public law cases in which a substantial defendant may be required to bear all parties’ costs, or be deprived of its own costs on the issues on which it succeeds. The fact that the Appellant is a larger organisation than the Respondents does not in our view affect the costs issues; nor does the fact that the Appellants’ standard contract was in issue. We shall make no order for costs on the appeal. 3. On the basis of our judgment, the orders for costs made by HH Judge Graham Jones, requiring the Appellant to pay the Respondents’ costs, cannot stand. The Appellant submits that the appropriate order would be one that results in it bearing 35 per cent of the Respondents’ costs below. We accept that submission. The costs orders made by the judge will be set aside, and replaced by an order that the Appellant pay 35 per cent of the Respondents’ costs of and occasioned by the trial of the preliminary issues before HH Judge Graham, to be determined by detailed assessment on the standard basis in default of agreement. If and to the extent that the Appellant has paid more than that percentage of the Respondents’ costs, the Respondents must repay the excess to the Appellant within 14 days of that excess being quantified by agreement or assessment, or if any of the Respondents’ costs have already been quantified, within 14 days of the date of this order.